RESPONSE BY THE EUROPEAN ALLIANCE OF LISTENERS AND VIEWERS
ASSOCIATIONS (EURALVA) TO ISSUES RAISED BY THE EUROPEAN COMMISSION IN FOCUS
GROUPS 1-3 FOR THE REVISION OF THE EUROPEAN UNION’S

‘TELEVISION WITHOUT FRONTIERS’ DIRECTIVE

Focus Group 1: The Regulation of
Audiovisual Content

1. EURALVA does not support the
proposals for a graduated regulatpry framework for the delivery of audiovisual
content to viewers of television services. Bearing in mind that:

(1) the provisions of
Article 3(1) of the Directive which entitles Member States to require
television broadcasters within their jurisdiction to comply with stricter rules;

(2) the provisions of
Article 22 of the Directive which entitles Member States to take appropriate
measures to ensure that television broadcasts by broadcasters under their
jurisdiction do not include any programmes which might seriously harm or impair,
or in certain specified cases are likely to harm or impair, the physical,
mental or moral development of minors; and

(3) the
provisions of Article 10(2) of the European Convention of Human Rights (which
has now been incorporated into Part I of the Treaty Establishing a Constitution
for Europe) require that any restrictions that are imposed on the right to
impart information and ideas must be ‘necessary in a democratic society’;

EURALVA considers that any restrictions
on audiovisual content in the revised directive should only be those that are
necessary in a democratic society, and that they should apply to all forms of
television broadcasting, whether linear or non-linear, and whatever their market
share.

2. EURALVA supports the continuation of
the restrictions on advertising and teleshopping in Articles 12-16 of the
Directive, and the restrictions on programme content in Articles 22 and 22a of
the Directive, since it considers that these are still necessary in a democratic
society.

3. In addition, given the right of
protection that is guaranteed to children in the United Nations Declaration on
the Right of the Child [fellow EURALVA members please give the correct legal
citation] EURALVA considers it necessary to amend Article 22a of the
Directive to include a ban on any audiovisual material portraying violence
to children, including sexual violence.

4. EURALVA recognises that it may
occasionally be necessary to include material in a fictional production which
involves the simulated portrayal of violence to children. In such
circumstances, Member States shall be authorised to put in place arrangements
that regulate such simulated portrayals. These could be by a form of directly
delegated regulation, or by means of co-regulation with the domestic society for
the protection of children in that Member State.

5. Moreover, although EURALVA recognises
that it may be technically possible for consumers living in the European Union
to download by means of electronic communication, audiovisual material that
portrays viiolence towards children which has been produced and stored outside
the EU, it considers that the EU should give a lead in this area to other
countries in the world by banning such material in all electronic communication
services licensed in the EU.

Focus Group 2: The Level of Detail in
the Regulation of Television Advertising

6. EURALVA welcomes the Commission’s
recognition that television advertising continues to need special regulation
which goes beyond that laid down in the misleading advertising directives, and
in the proposal for a new directive on commercial practices. It is important to
insist however, that any new television advertising techniques, such as split
screen advertising and virtual advertising, should continue to be regulated
within the framework of the Television Without Frontiers Directive. Europe’s
television viewers need to be assured that the regulatory framework for these
new advertising technologies will be the same as that for traditional forms of
television advertising.

7. Moreover, it is unlikely that any of
the emerging European legislation on consumer protection if likely to apply to
viewers of free-to-air television services. It is only for subscription
television services, where the viewer is required to sign a written contract
with the supplier of the service, that the viewer assumes the legal status of a
consumer, and would therefore enjoy the contractual benefits of general consumer
protection legislation. In this context, viewers of free-to-air television
services will continue to have to rely on the minimum standards for the
protection of viewers spelt out in the Television Without Frontiers Directive.

8. Television viewers are currently
protected by a certain number of minimum rules in the Television Without
Frontiers Directive which have been included, in the words of the relevant
recital in the 1989 text of the Directive, “In order to ensure that the
interests of consumers as television viewers are fully and properly protected.”
EURALVA submits that when revising the Directive to take account of new
technological developments, the EU must ensure that the interests of consumers
as television viewers continue to be fully and properly protected. This
means that, the rationale of Article 10(1) of the Directive, which requires that
television advertising and teleshopping shall be readily recognizable as such ,
and kept quite separate from other parts of the programme service by optical
and/or acoustic means, is not only (in the Commission’s words) “to be able to
recognize and distinguish advertising from editiorial content”, but also to
enable viewers, should they so wish, to watch the editorial content without
having to watch the advertising content. EURALVA therefore submits that the
Commission is misguided in its attempt in its Interpretative Communication
[C (2004) 1450)] to invoke the principle of in dubio pro libertate.
(page 4)In establishing its interpretative communication the Commission
must not only take into account the absence of relevant case law, but also the
guiding words of the relevant recital in the original text of the 1989
Directive.

9. With regard to Article 10 of the
Directive therefore, EURALVA rejects the Commission’s proposal that article
10(2) of the Directive needs to be reviewed in the light of the development of
split-screen advertising. While it may be true that the regulators in
Germany and the United Kingdom already permit split-screen advertising, EURALVA
submits that these are a de facto breach of Article 10(2) and the
practice should become an exception, as required by Article 10(2) of the
Directive, forthwith.

10. With regard to the issue of
surreptitious advertising, EURALVA submits that this activity should
continue to be banned, as currently required by Article 10(4). EURALVA
recognizes the problems faced by National Regulatory Authorities in
distinguishing between the surreptitious advertising and a lawful reference to
goods, services, brands, or the names of economic operators, but it considers
that the Commission’s suggestion of adopting the criterion of undue
prominence to be misguided. If the EU were to pursue this path, it would
introduce a separate set ofsubjective criteria of regulation for each
Member State. What is needed instead, is for the EU to establish a common
set of regulatory arrangements which apply equally to all Member States.

11. EURALVA therefore proposes two
changes to the revised text of the Directive:

(a) The rules that the relate to the
common commercial practice of ‘product placement’ should be assimilated to the
rules for programme sponsorship in the Directive; and

(b) In order to ensure that any
allegedly surreptitious advertising is not intended by the broadcaster, each
broadcaster should be required to produce an affidavit for its relevant National
Regulatory Authority, which certifies that every programme that it broadcasts
contains no surreptitious advertising or sponsorship beyond that allowed in the
rules on programme sponsorship in the Directive, which will have been revised to
take account of the practice of product placement. This would then place upon
the broadcaster the onus of ensuring that any commercial goods or services
portrayed in a programme were neither there to serve advertising, nor were
capable of misleading the public.

12. With regard to interactive
advertising, EURALVA recognizes that once a viewer has moved into an
interactive area where the service is supplied on individual demand, it ceases
to be a television service and become an information service that lies outside
the provisions of the TWF Directive. However, EURALVA considers it to be
important that each individual viewer is informed every time s/he moves from an
area that is regulated by the TWF Directive into an area that is regulated by
the Misleading Advertising and electronic services directives. On each occasion
therefore, the advertiser should be required to give them a warning notice, and
require them to sign an electronic contract which also gives them consumer
protection against any harm which arises from any interactive advertising that
they may subsequently encounter.

13. With regard to virtual
sponsorship, EURALVA shares the Commission’s view (which arises in turn from
paragraph 62-65 of the Judgement of the European Court of Justice in RTL
Television GmbH v. Niedersachsische Landesmedienanstalt fur Privaten Rundfunk)
that this must not affect the comfort and pleasure of the viewer. Thus, in
addition to obeying all the other rules on sponsorship in the Directive, notably
those in articles 1 and 17, virtual sponsorship shall not intrude on the
viewer’s pleasure of watching the event being broadcast.

14.Thus EURALVA submits that an addendum
should be added to article 17(1)(a) of the Directive (which forbids the sponsor
from influencing either the content or the scheduling of a sponsored programme,
in such a way as to affect the responsibility and editorial independence of the
broadcaster in respect of the programme) to the effect that neither shall the
sponsor affect the pleasure or the comfort of the viewer. Thus, while it may be
acceptable for the sponsor to replace existing advertising boards on the field
of the event by superimposing new images, the new superimposed images must not
extend beyond those advertising images already visible on the field of play.

15. Moreover, EURALVA supports the
Commission’s view that viewers must be informed in advance of the presence of
virtual advertising messages in broadcasts of sporting and other events of
public interest.

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Focus Group 3: The Right to
Information and the Right to Short Extracts

16. EURALVA considers that the provision
of Article 5(3) of Directive 2001/29EC of 22 May 2001 on the harmonization of
certain aspects of copyright and related rights in the information society
permit any Member State to make an exception to the exclusive right to
communicate a work to the public, in order to make a short extract of the work
available to viewers by means of other television broadcasters. This enables
parties to the European Convention on Transfrontier Television can introduce (as
specified in article 9 of the Convention) ‘the right to short reporting on
events of high interest for the public to information being undermined due to
the exercise by a broadcaster within its jurisdiction of exclusive rights.’
Moreover, article 10(1) of the European Convention on Human Rights gives
citizens the right to receive information of this nature.

17. EURALVA therefore considers that a
new article (probably article 3b) needs to be added to the Television Without
Frontiers Directive which makes it mandatory for every Member State to make
an exception to the exclusive right to reproduce and communicate to the public,
which permits any broadcaster to broadcast to the public a short extract of a
report of an event of high public interest. This exception would apply
whether or not the event was the subject of an exclusive broadcasting right. In
EURALVA’s view, since such a broadcast would normally be made after the end of
the event in question, such a provision would comply with the provisions of
Article 5(5) of Directive 2001/29/EC, since it would be a special case that
would not conflict with the normal exploitation of the broadcast, and the
broadcasting of such an extract would not unreasonably prejudice the legitimate
interests of the rightholder.